Children and Assumption of Risk

“Assumption of the risk” is a legal doctrine which arises in personal injury claims regarding a person’s willingness to assume certain risks inherent in specific activities, such as the risk of being hit by a pitch while playing a baseball game. Assumption of the risk requires that a person knew about the danger involved in an activity, understood and appreciated the risks involved, and voluntarily undertook those risks.

Assumption of the risk can be express or implied. Express assumption of the risk is when a person acknowledged, before the injury, that he or she was aware of the risks involved in the activity. Express assumption of risk commonly takes the form of a written agreement, such as a waiver of liability signed before participating in an activity. One common issue with liability waivers is whether the defendant exceeded the scope of the agreement by acting negligently or intentionally to harm the plaintiff. Another common issue with liability waivers is whether the plaintiff was adequately of the waiver or it was hidden in an agreement.

Implied assumption of the risk is when no express agreement has been made, but the plaintiff knew and understood the risks involved in an activity and exposed him or herself to them anyway. For example, people who participate in a pickup sports game assume the risk of the type of contact typical to the sport. However, participating in a sport does not mean that one assumes the risk of contact not typical to the sport, such as overly dangerous behavior that is not a part of the game. A person does not assume the risk of an activity where the risks are over and above what the person should reasonably expect when participating in that activity.

CAN A MINOR ASSUME THE RISK OF AN ACTIVITY?

The rules for assumption of the risk change for people with lower capability to understand risks, such as children or developmentally disabled people. In California, a child may sign a liability waiver to participate in certain activities so long as the child’s parent also signs. A parent signature is typically necessary to create a legally enforceable contract because children are generally permitted to dis-affirm their contracts under California Family Code Section 6710. However, a parent may sign an assumption of risk agreement on the child’s behalf and make it a legally enforceable contract (e.g. a liability waiver signed by a parent to permit his or her child to participate in a hypnotism show). Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal.App.3d 1559, 1565.